Protecting the System

Working in the U.S., it's easy to take the independence of the judiciary for granted. It's easy to forget its huge impact on our everyday lives. Sometimes it takes a strong dose of international perspective to open our eyes--both to big problems elsewhere and to growing problems here at home.

Because software piracy and counterfeiting are so widespread, work in the courts is a global preoccupation for many lawyers at Microsoft. In a typical year we file more than 4,000 such lawsuits in about 70 countries. This gives us a window on how the judiciary is working around the world.

Unfortunately, in many parts of the world it doesn't work very well. The problems are as diverse as the world itself.

The problems start with countries where there is a dearth of lawyers, especially in Africa and some countries in Asia. Living in a nation that arguably has too many lawyers, it's easy to forget that large parts of the world have too few.

In other countries a lawsuit is a dangerous proposition. For example, in one courthouse in a major Asian capital, witnesses in our cases twice in the past
18 months were almost hurled down the courthouse staircase after they completed their testimony.

There are many places in the world where it is dangerous to be a lawyer. We've had outside counsel turn up for meetings thinking they were there to settle a case, and instead they were threatened and in some cases assaulted and abused.

There are many countries where one brings a case, gathers the evidence, and entrusts the evidence to the physical custody of the police or court officers. Yet on the morning of trial, it's just not possible to find the evidence anymore.

The problems extend to the judiciary itself. In some countries there aren't enough judges for the judicial system to operate effectively. As a result, it can take more than a decade to get a decision from a trial court.

There are many countries where judges are so underpaid that there is a terrible temptation to resort to bribery. In one Eastern European country, there is a well-established market for bribery in the judiciary. Everyone knows that the market price for a judgment is roughly $1,000. If you demand a settlement for more than that, the defendant will pay the judge instead.

In some jurisdictions, judges feel pressure to defer to the power of the executive branch. That pressure can arise in a case against a large company or one involving police officers who supplement their income by extorting bribes from poor people based on trumped-up charges.

What does all this mean for in-house counsel in the U.S? First, it's important to recognize how exceptional it is to live in a country with an independent judiciary that generally is quite healthy.

Second, it's imperative to appreciate the importance of the example the U.S. sets for those who work in the judiciary elsewhere. There are great judges everywhere in the world, and for the most part people who aspire to become judges aspire to become great judges. But they don't necessarily work in an environment where that is easy. The example set here is of tremendous practical significance in helping them build the independence of their own judiciary.

Finally, this calls on us to be vigilant in addressing problems in the U.S. when they arise. Many judges in our own country, including all those at the federal level, have seen their incomes decline steadily in real terms over the past two decades. At the same time, we're witnessing a sharp and recent rise in the amount of money spent by interest groups on elected state court races. These threaten the long-term health of our own judiciary.

One lesson is that the time to address problems is before they become so large that they become unsolvable. That point has not yet arrived here. But we should not wait.